09 September 2014

It's unfortunate that throughout history there have been legislative trends, where legislators around the country, continent or world rush to pass similar laws to address what they believe to be similar problems in similar supposedly popular ways. Thus has come to pass the trend of creating laws to ban particular breeds of dogs, even though there is no scientific way to truly determine dog breed, and the effectiveness of these racist bans in achieving their laudable aim of reducing dog bites is doubtful at best.

Everyone can agree that dog bites aren’t good things to happen to anyone, and are particularly tragic for children where a dog attack runs the risk of disfigurement or even death. One legally-certain response to this public health concern would be the banning of all dogs. No more dogs, no more dog bites. End of problem.

Sure, we might then still complain about cat bites or even yak bites, and consider banning them as well, but at least the dogs would no longer be a issue. But even the breed ban advocates never argue that all dogs should be eliminated, just as human racists never argue that all humans should be disposed of, just the bad ones, whom they argue can be identified not by what they’ve done (because we don’t want to let it get to that point) but rather by what they might do.

The pro-ban argument proceeds from the assumption that there is supposedly a racial predisposition to badness, and thus if we just get rid of that race, the risk of badness will be greatly reduced. This argument used to be made for humans, notwithstanding that it is now considered to be highly offensive and scientifically unsound. Now this argument is being applied to dogs.

Its proponents trot out various pseudo-scientific figures and anecdotal media stories of savage attacks by particular dog breeds. The difficulty with the data is that it often doesn’t support the breed ban target as being the most aggressive breed, and there’s no reliable nation-wide hospital data on dog bites by type of breed. Even the academics trying to apply some intellectual rigour to the debate can get stuck relying on media stories to identify breeds associated with serious bites, with the obvious problem that specific breeds might be considered more newsworthy or be misidentified. A certain Stephen King’s Cujo notwithstanding, when was the last time you heard the media bothering to report the story of a vicious St. Bernard attack?

Another challenge of looking at this question under Canadian law, is that a lot of the (mis)assumptions are based on U.S. reports and data. But we do at least have the Canadian Veterinary Journal as a peer review publication whose articles have academic rigour to them. Although now a bit dated, the article “Fatal Dog Attacks in Canada 2000-2007,” Can Vet J. Jun 2008; 49(6): 577–581 is important as it analyzes Canadian rather than American data. The study identified 28 human deaths caused by dogs during the 13 years study period. A pitbull caused only one of the deaths.

In that study, Rottweilers, huskies and mix-breed dogs were all implicated in far more deaths than pit bulls. The study found that dog accessibility to, interaction with and adult supervision of children were the driving factors for fatal dog attacks, and that breed contributed little to nothing in the way of propensity towards fatalities.

Although there is some data out of the U.S. suggesting that quite a few biting incidents have occurred with pit bulls as the instruments, that’s kind of like saying quite a few stabbing incidents have involved steak knives. No one seems to be looking at the kind of owner or training behind the pit bulls, and everyone seems to agree that most any dog (if starting from an early enough age) can be trained to be vicious or loving. In the nature/nurture debate, the data appears to strongly favour nurture as the determining factor. We ban bad drivers of cars, not the cars themselves - even though in anyone’s hands a car is a deadly weapon. Instead of banning breeds, shouldn’t we consider banning more people from the privilege of having any dog?

The most unreasonable part about doggy racism is that there’s no such thing as different dog races from a genetic perspective. Just as with humans, every person and every dog is a mix, with some having more characteristics than others of a particular kind, but with no test to definitively say: oh, you’re definitely of that race.

Now don’t get me wrong. I’m not suggesting that doggy racism is an equal evil to the scourge of human racism. I’m at heart a constitutional and human rights lawyer. Note the word “human.”

I’m also a law-and-order kind of guy. Served for nine years as a Federal Prosecutor. I believe that where there’s a clear cause and effect relationship between something and harm to society, then it’s the responsibility of government to go after that something. Guns of any type kill people — no doubt about it — mainly from suicide or accident, so I’m all for extensively regulating them. But not a lot of dogs are used in suicides, and I’ve never heard someone say “I didn’t realize it was loaded” about a dog.

In addition, animals remain ownable property, and I’m not suggesting that should change, though they clearly have a growing number of their own quite limited rights protecting them from human cruelty. The law has recognized for some time that animals aren’t cabbages or rocks, which you can mostly do with as you will.

But the impact of doggy racism isn’t just on dogs; it directly affects their owner humans who are often put in very difficult positions of proving to authorities that their dogs aren’t racially forbidden. Some of these dog owners are very poor, and suffer from a variety of health problems. Their dogs provide them with important emotional comfort. Having an animal to care for has been demonstrated in study after study to improve the animal guardian’s mental state. Breed ban or no breed ban, dog owners have always been legally responsible for bad acts committed by their dogs.

To conclude, I’d like to take you right to one of the breed ban pieces of legislation, the Ontario Dog Owner’s Liability Act. I use the Ontario legislation as my example because that’s where my law firm is located, but we could pick legislation from various spots around Canada or the United States all of which are variations on a common theme. Included in the provisions of the Ontario law is the following:

1. Definition of Banned Dog: “pit bull includes, (a) a pit bull terrier, (b) a Staffordshire bull terrier, (c) an American Staffordshire terrier, (d) an American pit bull terrier, (d) a dog that has an appearance and physical characteristics that are substantially similar to those of dogs referred to in any of clauses (a) to (d).” Unfortunately, the definition in essence involves saying that a pit bull is a pit bull. Mention is made of breed standards of the Canadian Kennel Club, the United Kennel Club, the American Kennel Club and the American Dog Breeders Associations, but none of those organizations are government bodies, they don’t agree on breed standards, the pit bulls being targeted by breed bans rarely have papers, and will very often be mixed breed dogs that happen to share physical characteristics of many breeds. Just like the pit bull itself was considered a mixed breed, until dog breeder organizations started to establish breed standards after much debate.

2. Burden of Proof: “If it is alleged in any proceeding under this section that a dog is a pit bull, the onus of proving that the dog is not a pit bull lies on the owner of the dog.” Thus, according to the definition section we aren’t going to really tell you what a pit bull is - though we’ll know one to see one — and if we claim he’s a pit bull — even though he’s a St. Bernard — you’re the one who’s got to take the time, trouble and expense of proving otherwise.

3. Presumption of Capital Punishment: the Ontario legislation provides for a variety of measures far short of destruction that may be ordered by a court where a dog is found to have attacked a person or domestic animal: confinement to owner’s property; restraint by leash; muzzling; positing of warning signs. However, for pit bulls death is stated to be the mandatory minimum sentence.

While all of this would seem at the very least unfair to pit bulls and their owners if everyone instantly knew from a conclusive test what was and was not a pit bull, the ban might at least be legally implementable. But where there is no testing for “pit bullness,” we’re all just guessing at dog breeds, and a mere unsupported claim by the government that you have a pit bull requires you to prove otherwise if you’re to stop your beloved pet (who has never threatened anyone) from being put to death, we have a legislative travesty. Legislators throughout North America need to reexamine the science behind how best to address the important public health challenge of injuries and deaths caused by dogs, rather than going after family pets based primarily subjective assessments of dog appearance.